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DBL%20Hendrix%20small.png College chemistry, 1983

Derek Lowe The 2002 Model

Dbl%20new%20portrait%20B%26W.png After 10 years of blogging. . .

Derek Lowe, an Arkansan by birth, got his BA from Hendrix College and his PhD in organic chemistry from Duke before spending time in Germany on a Humboldt Fellowship on his post-doc. He's worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer's, diabetes, osteoporosis and other diseases. To contact Derek email him directly: derekb.lowe@gmail.com Twitter: Dereklowe

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December 22, 2009

GE Healthcare's Idiotic Libel Suit

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Posted by Derek

Courtesy of Pharmalot (and my mail!), I note this alarming story from London. GE Healthcare makes a medical NMR contrast agent, a gadolinium complex marketed under the name of Omniscan. (They picked it up when they bought Amersham a few years ago). Henrik Thomsen, a Danish physician had noted what may be an association with its use and a serious kidney condition, nephrogenic systemic fibrosis, and he gave a short presentation on his findings two years ago at a conference in Oxford.

For which GE is suing him. For libel. Update: the documents of the case can be found here. They claim that his conference presentation was defamatory, and continue to insist on damages even though regulatory authorities in both the UK and in the rest of Europe have reviewed the evidence and issued warnings about Omniscan's use in patients with kidney trouble. Over here in the US, the FDA had issued general advisories about contrast agents, but an advisory panel recently recommended that Omniscan (and other chemically related gadolinium complexes) be singled out for special warnings. From what I can see, Thomsen should win his case - I hope he does, and I hope that he gets compensatory damages from GE for wasting his time when he could have been helping patients.

And this isn't the only case going on there right now. Author Simon Singh is being sued by the British Chiropractic Association for claiming in a published article that chiropractic claims of being able to treat things like asthma as "bogus". Good for him! But he's still in court, and the end is not in sight.

This whole business is partly a function of the way that GE and the chiropractors have chosen to conduct business, but largely one of England's libel laws. The way things are set up over there, the person who brings suit starts out with a decided edge, and over the years plenty of people have taken advantage of the tilted field. There's yet another movement underway to change the laws, but I can recall others that apparently have come to little. Let's hope this one succeeds, because I honestly can't think of a worse venue to settle a scientific dispute than a libel suit (especially one being tried in London).

So, General Electric: is it now your company policy to sue people over scientific presentations that you don't like? Anyone care to go on record with that one?

Comments (40) + TrackBacks (0) | Category: Analytical Chemistry | Current Events | The Dark Side | Toxicology


COMMENTS

1. leftscienceawhileago on December 22, 2009 11:26 AM writes...

The UK's libel laws are highlighted in the really cool documentary, McLibel. You can watch the whole thing on Google Video:

http://video.google.com/videoplay?docid=547901963081075342#

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2. gyges on December 22, 2009 12:05 PM writes...

According to a report in the Guardian:

"Thomsen's lawyer, Andrew Stephenson, said his client's defence would be that the presentation and article were covered by qualified privilege, which can protect freedom of speech."

Does anyone know why he's running the defence of qualified privilege rather than justification?

I get the impression that there's more here than meets the eye; as yet, it isn't clear what.

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3. dearieme on December 22, 2009 12:27 PM writes...

"The UK's libel laws..": they are England's, Sir, not the UK's.

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4. Hap on December 22, 2009 12:45 PM writes...

1) Are libel laws different in different parts of the UK?

2) Did someone at GE Healthcare actually think this over before they filed the suit? Because if other regulatory authorities have already evaluated the claims and followed them themselves, all suing will do is attract attention both to them and their desperate desire to unthink unpleasant facts. And, as everyone knows (well, at least those in Dr. Rath's circle), the ability to unthink unpleasant realities is the key to profitable health care. (Not effective health care, or health care by people possessing a functioning conscience, however.)

Maybe GE's on to something.

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5. FormerMolecModeler on December 22, 2009 12:57 PM writes...

Truth is an absolute defense to libel or slander. I think that is the case in the UK as well. Doesn't sound like this is cut and dry.

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6. Dynastar on December 22, 2009 1:12 PM writes...

The point of these lawsuits isn't necessarily to win but to financially ruin the defendant and scare others who might think of doing such a thing. Mr Singh's defense has already run to six figures.

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7. MTK on December 22, 2009 1:25 PM writes...

I have no clue about UK law, or any other country for that matter, but I don't get this at all.

Beyond just the ethical and scientific reasons not to do this, there would seem to be real business reasons not to do so.

Even if GE Healthcare is "successful" in their lawsuit, if the association of nephrogenic systemic fibrosis is confirmed by other researchers, don't they open themselves up for far more damaging lawsuits in the future? From a risk assessment standpoint this doesn't seem to add up.

Maybe there is more to the story.

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8. Hap on December 22, 2009 1:58 PM writes...

But, if truth is an absolute defense, but the case isn't cut and dry, then GE would have to believe that Thomsen has misrepresented or falsified his work, and that his work is the primary evidence that various authorities have to restrict the use of Omniscan or to warn of problems with it. While the first could happen (sigh), the second seems harder to believe, unless authorities are relying of a tangle of references, all of which point back to Thomsen's work. (I don't know how things would work out if Thomsen had simply misinterpreted his evidence, and that evidence was the main reason Omniscan was limited - if he hadn't published with malice, then it would seem as if the regulatory agencies and not Thomsen would be to blame.)

In that case, wouldn't simply publishing evidence of Thomsen's malfeasance (if he had committed any) been a better idea? If the original publishers and other review had more or less confirmed the errors/fraud, then GE would have a much more secure case for a libel suit and the cloud around their imaging agent would have been dissipated. At minimum, they might have provided enough doubt to make people look carefully at their agents without abrogating the process of acquiring and publishing evidence. (Unless that's what they are intending to do, in fact.)

If he has evidence of truth, couldn't Thomsen turn it over to lawyers on contingency, since they could expect all of their fees (and some bonus damages as well) to be paid once GE finishes embarrassing themselves? That would make GE's persistence counterproductive, and would prevent them from silencing legitimate evidence.

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9. alig on December 22, 2009 1:59 PM writes...

In England, if you are the defendent in a libel suit, you must prove that your statement is true. In the US, the plantiff must prove that your statement is false. The defendent's burden is significantly higher in England.

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10. DerekF on December 22, 2009 2:18 PM writes...

I understand that, regrettably, truth is not an absolute defense to libel or slander in England, unlike the US. Between that and the procedural advantages mentioned by earlier posters for the person claiming to have been libeled, being sued for libel in England is no fun, even if you would think that Dr. Thomsen ought to win in a walk.

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11. Hap on December 22, 2009 2:22 PM writes...

So, if some moronic fundamentalist Christian gets a lawyer and sues Richard Dawkins in England for claiming that God doesn't exist (as a deity rather than as a thought/belief), they could actually win? Isn't that the reductio ad absurdum of an entire legal system?

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12. Petros on December 22, 2009 2:49 PM writes...

This is just the latest in a string of libel cases reflecting the use of the UK for libel tourism. And the judge who presides over nearly of these cases seems to exacerbate the issue. And the libel law have long been (ab)used by dubious business to stop the public finding out about their dealings, e.g Robert Maxwell founder of Pergamon (the original Tet Letts publishers)

Roman Polanski recently sued but was allowed to give evidence by videolink since he would have been sent back to the US if he landed in the UK!

With regard to Hap's question. The legal system in Scotland is different from that in England and Wales. although I don't know whether the libel laws are different.

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13. Lucifer on December 22, 2009 3:10 PM writes...

Is GE nuts? Their actions will get that issue far more attention.

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14. researchfella on December 22, 2009 3:48 PM writes...

Careful, Derek. You might be the next person to be sued by GE, for the defamatory comments on your blog.

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15. qetzal on December 22, 2009 4:04 PM writes...

When I first heard of this, it was on the WSJ Health Blog, which said:

GE Healthcare told the Times that the presentation was defamatory because it accused the company of suppressing information and marketing the drug when it was aware of possible problems, according to the article.

If Thomsen really did accuse GE of suppressing information, I could see some justification for the suit. (Assuming Thomsen couldn't back up such an accusation, of course.)

However, the link in Derek's post goes a little more in depth:

GE Healthcare said this weekend it believed the presentation was defamatory because it accused the firm of suppressing information and marketing its product when it was aware of possible problems.

Last week, however, a spokeswoman was unable to highlight any part of Thomsen’s presentation in which this allegation was made. The writ says the defamation may have been “by way of innuendo”.

From that, it sounds unlikely that Thomsen made any overt accusations. In which case, I too hope Thomsen prevails, and then I hope he countersues GE for defaming him, and wins big.

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16. dearieme on December 22, 2009 4:33 PM writes...

"1) Are libel laws different in different parts of the UK?" Virtually all laws are, except insofar as a big effort is made to keep commercial law and tax law nearly identical. England has a Common Law system, Scotland its own variety of Roman Law.

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17. gyges on December 22, 2009 4:58 PM writes...

@quetzal

"...unlikely that Thomsen made any overt accusations"

It is still possible to be defamatory through innuendo. It would be helpful if the particulars of the case were available. Thomsen should have them ... has he got a scanner?

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18. S Silverstein on December 22, 2009 8:14 PM writes...

gyges wrote: "It would be helpful if the particulars of the case were available. Thomsen should have them ... has he got a scanner?"

I emailed Prof. Thomsen and asked if a copy of the docket were available. I will blog on it at Healthcare Renewal if I can obtain it, or more specifics than appears in the press.

BTW would it be defamatory for me to recall the Radiological Society of North America (RSNA) meeting in Chicago,